R. v. Stewart

2014 BCSC 1770 R. v. Stewart IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Stewart, 2014 BCSC 1770 Date: 20140919 Docket: 77840 Registry: Kelowna Regina v. Matthew Scott Stewart Before: The Honourable Mr. Justice G.P. Weatherill Reasons for Sentence Counsel for Crown: P. O'Neill C. Forsyth Counsel for Accused: A. Vandersluys Place and Date of Hearing: Kelowna, B.C. July 14 and 23 2014 September 17, 2014 Place and Date of Judgment: Kelowna, B.C. September 19, 2014 Introduction [1] These reasons for judgment are to sentence the offender Matthew Scott Stewart. [2] The offender was originally charged on a seven count indictment with offences that occurred in the early morning hours of November 1, 2012 during a "home invasion" at 1340 Belaire Avenue, Kelowna, BC. [3] During the first day of a 10 day trial set to commence on July 14, 2014, Mr. Stewart pled guilty to two of the counts: 1) break, enter and theft contrary to s. 348(1)(d) of the Criminal Code (Count 1); and 2) using an imitation firearm while committing or attempting to commit the indictable offence of robbery, contrary to s. 85(2) of the Criminal Code (Count 5). [4] Counts 2, 3, 4, 6 and 7 were stayed. Circumstances of the Offence [5] The Crown provided a detailed review of the circumstances leading up to the charges as follows: a. During the evening of Halloween, the victim of the home invasion, Ms. Normandeau, was at her parents' home in Kelowna handing out Halloween candy to trick-or-treaters. She then watched a movie. Although she was attending school in Quebec at the time, she had returned to Kelowna to visit her parents and her boyfriend, Mr. Fisher. b. Towards midnight, she left her parents' home and travelled to Mr. Fisher's rented suite located in a home at 1340 Belaire Ave. Mr. Fisher worked at a bar and would complete his work-shift at 1:00 am. Neither Ms. Normandeau nor Mr. Fisher had any history of being involved in crime. c. She used a key Mr. Fisher had given her to enter the suite. Somehow, it became stuck in the lock and she could not get it out. She left it in the lock and went inside. d. While she was waiting she called her mother on her cell phone. During the call she heard a rap on the door and assumed it was Mr. Fisher returning home. She went to open the door. e. The door burst open and 2 men bolted in, knocking her to the floor. One had a pistol, the other a shotgun. Both guns were pointed at her. The men ordered her down and shoved her to the floor. f. She screamed for help. The men told her to shut up or they would kill her. They took her cell phone and removed the battery. h. The men demanded to know where the "Italian" or "Indian" was - she can't be sure. She didn't know what they meant. i. The men demanded the key to the basement of the house. She did not know where it was or who might have it. She knew that the basement was not part of the house Mr. Fisher rented. j. She knew there was an outside entrance to the basement and told the men that. They were not satisfied. One kept a gun trained on her head while the out searched the suite telling her not to move or she would be killed. k. When the search of the suite came up empty, the men became agitated. They searched her pockets. She showed them the house key that was stuck in the front door. The men assumed this key might be the basement key also and they tried to remove it from the lock. The short time they were distracted allowed Ms. Normandeau an opportunity to escape. She ran outside and down the street, knocking on doors trying to get help. She heard the 2 men coming after her so she hid in some bushes. m. The 2 men could not find her. She saw them enter a duplex a short distance down the street. She ran the other way, onto Harvey Avenue, (a main thoroughfare in Kelowna) and flagged down the first vehicle she could, which happened to be a taxi. The taxi driver called 911. n. Cpl. Lepine was first on scene. Ms. Normandeau was crying and upset. She was able to show Cpl. Lepine the duplex she saw the men enter. A police dog was dispatched. It tracked the scent from 1340 Belaire to the duplex. o. There were occupants at the duplex when the police arrived - 3 males (Mr. Graham, Mr. Blanchard and Mr. Grant) and 1 female - Ms. Petersen. All four were arrested. Messrs. Graham and Grant admitted living at the duplex. They were having a party that night. The offender lived in the other half of the duplex. p. The police located cocaine in the duplex. q. Messrs. Blanchard and Grant told the police they had overheard the offender and Mr. Graham stating that they thought there was a marihuana grow-op in the basement of 1340 Belaire and they intended to go there and take some marihuana. r. The police were told that the offender and a Mr. Ward left the party before the police arrived. s. A search warrant was obtained for both sides of the duplex. The search recovered an X-box belonging to Mr. Fisher, Ms. Normandeau's cell phone, a gun, a safe containing 2 semi-automatic rifles, a shotgun and ammunition. A subsequent DNA test and fingerprints linked these to the offender. t. Mr. Ward was subsequently arrested. He told the police that the accused and Mr. Graham were the 2 men who committed the home invasion. u. The police also located a digital camera in the duplex containing a photograph of the offender. Ms. Normandeau was able to identify him from the photograph. v. The offender could not be located and an arrest warrant was issued. He was subsequently arrested in Surrey on January 11, 2013; He has been in custody on these charges since. w. The police were never able to locate the 2 guns used in the home invasion and are unable to determine if they were real or imitation. x. In November, 2013, Ms. Normandeau was able to identify the offender. She was not able to identify the co-accused, Mr. Graham. y. Crown attempted to secure the cooperation of the other four individuals at the party, but could not. They would not cooperate, maintained they could not remember anything, or evaded service of subpoenas. Victim Impact Statement [6] The victim of this home invasion, Ms. Normandeau, provided a short statement summarizing the impact the event had on her. In its entirety, it states: The crime has had an emotional, mental and financial impact on me. I have felt helpless and angry; wanting to die at times. It was really difficult for me to concentrate on work after the crime. I did not work for six months following the event ($1,750/month x 6). I have also needed counselling in the past two years which has had a financial impact on me ($135/session and I have had nine sessions so far and I will still go in the next few years). I don't know if the accused have realized how much they have impacted my life. How their actions have changed a person's life forever. Circumstances of the Offender Relevant Personal Background [7] Aside from the offender's criminal record, I have the following information about his background. He is 31 years of age with a grade 11 education. He grew up in Aldergrove, B.C. in foster care. It was a rough upbringing. His parents abused alcohol and drugs and he has no contact with them for many years. [8] He has worked as a mover, a fork-lift operator and a marble and tile installer. At the time of the offences he was employed by a tile installation company in Kelowna. His employer has offered to re-hire him on the completion of his sentence from these offences. [9] He accepts responsibility for the events of November 1, 2012, recognizes the effect his actions have had on the victim, Ms. Normandeau, and is remorseful. Criminal Record [10] The offender has been before the courts before. In fact, he has five other convictions. His record is before the Court and was marked as Exhibit 2. [11] On January 17, 2007 in Surrey, BC, he pled guilty to the offence of carrying a concealed prohibited weapon contrary to s. 90 of the Criminal Code. He was given a conditional discharge and six months' probation. [12] On March 3, 2008 in Merritt, BC, he pled guilty to possessing a controlled substance contrary to s. 4 of the Controlled Drugs and Substances Act and was fined $1,200. [13] On April 21, 2008 in Surrey, BC, he pled guilty to possessing a controlled substance contrary to s. 4 of the Controlled Drugs and Substances Act and was fined $300. [14] On May 6, 2013 in Kamloops, BC, he pled guilty to possessing a controlled substance for the purpose of trafficking contrary to s. 5 of the Controlled Drugs and Substances Act. He was sentenced to four months in jail and was prohibited from possessing firearms for 10 years. [15] On October 10, 2013 in Surrey, BC, he pled guilty to assault with a weapon contrary to s. 267 of the Criminal Code. He was placed on probation for 18 months, was given a lifetime firearms prohibition and a suspended sentence. Current Circumstances [16] The offender has been in custody since he was arrested on these charges on January 11, 2013. Other than that, I have no information about the offender's current circumstances. Attitude to the Offence [17] The offender pled guilty to the offence. I take that plea as evidence of remorse. Pre-Sentence or Other Reports [18] No such reports were presented in this case. Submissions [19] The Crown and defence made a joint submission on sentencing. That joint submission was that the appropriate sentence was two years on Count 1 and one year consecutive on Count 5. [20] The offender would get credit for time served of 1.5 for each day in custody. [21] The offender would have a one year probation order following his release. There would also be an Order of Forfeiture of various items seized from his residence. Applicable Sentencing Authorities Home Invasion Sentencing Ranges [22] As mentioned, counsel submitted that a two year sentence for the Count 1 offence would be appropriate in this case, and they cite four cases supporting that view. [23] At first blush, the suggested two year sentence seems contrary to R. v. Bernier, 2003 BCCA 134, a home invasion case heard by a five-member bench wherein the sentencing range appears to be five to 10 years. In that case, however, the Court expressed caution towards sentencing ranges in home invasions; indeed at para. 96 Newbury J.A. said: [96] As Madam Justice Prowse has shown in her Reasons, the role of an appellate court in respect of sentencing "ranges" generally has been dealt with at length and on numerous occasions by the Supreme Court of Canada. Nevertheless, the concept of "ranges" continues to cause difficulty. I agree with Madam Justice Southin that discussions about range are often inexact or confusing, and that it would be more useful to focus on the application of the conventional and now-codified principles of sentencing to each case. [Emphasis added.] [24] I take the overwhelming point from Bernier to be that courts should focus on the codified principles of sentencing and each case's particular facts. While ranges are important, they are not dispositive. [25] I now turn to the cases counsel cited. [26] First, in R. v. Sherwin, 2012 BCSC 2008 [Sherwin] - a case involving an intoxicated offender breaking and entering, stealing some property, an assault with a bat; flight from the crime scene, throwing a knife at the arresting officer, and only being subdued after being tasered - Stromberg-Stein J. sentenced the offender to three years and three months less a day minus one year three months for time served, so the effective sentence was two years less a day and three years' probation. In discussing a range, Stromberg-Stein J said: [15] In a Court of Appeal decision, R. v. Moore, 2008 BCCA 129, the Court of Appeal suggested a range of six to 13 years for a violent home invasion and spoke of the principles of general deterrence and denunciation that should be given priority but not to the extent of obscuring other sentencing objectives. As the Crown and Court of Appeal have pointed out, suggested ranges of sentencing are useful as a guide. [Emphasis added.] [27] Second, in R. v. Craig, 2010 BCCA 174 - a case involving an offender who accompanied a woman to her allegedly abusive boyfriend's home and returned to kick in the door to the home and assault the boyfriend - the Court upheld the sentences for assault with a weapon and breaking and entering while committing an indictable offence, approximately eight months and three years, respectively. In discussing a range, the Court upheld the sentence because it fit in the range of similar offences in similar circumstances. At trial, the crown originally wanted a global sentence of four to six years, and the defence proposed a two year conditional sentencing follow by three years' probation with daily reporting. [28] Third, in R. v. Dhaliwal, 2007 BCSC 1936 - a case involving offenders who broke into what they believed to be a grow-op and repeatedly tasered and viciously assaulted the home's occupant; they stole the occupant's wallet and cell phone - Groberman J. sentenced the accused to two years less a day in prison for the break and enter (one accused's sentence included 18 months' probation) and four months for one accused and three months for the other accused for the assault. In discussing a range, Groberman J. said: [50] The Alberta Court of Appeal in R. v. Matwiy (1996), 105 C.C.C. (3d) 251 at 263 considered some elements of home invasion types of crime that were particularly troubling. The Court said: We are of the view that the home invasion robbery merits a higher starting point sentence than the armed robbery of a bank or commercial institution. While offences of violence are abhorrent wherever they occur, offences which strike at the right of members of the public to the security of their own homes and to freedom from intrusion therein, must be treated with the utmost seriousness. Individuals in their own homes have few of the security devices available to commercial institutions. They are often alone, with little hope that help will arrive. Such offences, whether they result in injuries or not, are almost always terrifying, traumatic experiences for the occupants of the residence, often leaving them with a total loss of any sense of security. [51] What is said in Matwiy must be qualified to some degree by the fact that in British Columbia, at least, it is common for home invasion type crimes to take place at the site of grow ops. There may be some expectation (or at least some anticipation) on the part of occupants that break-ins can occur. However, as Judge Kitchen said in the Porter, supra, "the fact that it is a grow op is neither an aggravating nor a mitigating circumstance." We see many intended invasions of grow ops that get the wrong address or otherwise result in tragedy. [52] The Alberta Court of Appeal set out six typical characteristics of home invasion offences which, they said, when present would normally result in a sentence of eight years or more for a mature first-time offender. Those characteristics were that the accused: (a) plans to commit a home invasion robbery although the plan may be unsophisticated and targets a dwelling with intent to steal money or property which he or she expects is to be found in that dwelling or in some other location under the control of the occupants or any of them; (b) arms himself or herself with an offensive weapon; (c) enters a dwelling, which he or she knows or would reasonably expect is occupied, either by breaking into the dwelling or by otherwise forcing his or her way into the dwelling; (d) confines the occupant or occupants of the dwelling, even for short periods of time; (e) while armed with an offensive weapon, threatens the occupants with death or bodily harm; and (f) steals or attempts to steal money or other valuable property. [53] All of these characteristics are present in the case at bar. Clearly, the eight year starting point alluded to by the Alberta Court of Appeal has not found favour in British Columbia, and in any event I hasten to add that the accused in this case are not, given their youth, lack of criminal record, and generally satisfactory behaviour with minor exceptions since the offence, looking at anything like an eight year custodial sentence [29] Fourth, in R. v. Brossault, 2009 BCSC 464 - a case involving offenders who committed two home invasions: 1) the offenders broke in and held a machete tip to the occupant's throat and hand guns to each his temples, they bound and assaulted the occupant, and they stole the cell phones in the house; and 2) the offenders forced their way into the house holding a machete and a pellet gun, they bound both occupants and attacked them, and they stole a considerable amount of cigarettes - Joyce J. sentenced the accused to global sentences (after time served) of three years and 15 days, two years less a day and five years and four months. [30] In discussing a range, Joyce J. thoroughly discussed Bernier and the cases cited in Bernier, and at para. 86, said: [86] What I take from all of this is that the Court of Appeal has suggested that the majority of cases of "home invasion" will fit somewhere in the range of five to eight years, depending upon the circumstances of the particular offences said to constitute home invasion and the circumstances of the particular offender but that there will be cases that fall on either side of that general range. A case may warrant a sentence in excess of that range because of particularly egregious circumstances concerning the offence or a particularly high moral blameworthiness on the part of the offender, and the lack of any mitigating circumstances. Other cases may warrant a sentence under the usual range because the circumstances of the offence are not egregious, and/or the circumstances of the offender are exceptional, such as the lack of any significant record, the youth of the offender, aboriginal status, evidence of remorse, and a clear potential for the rehabilitation of the offender. [Emphasis added]. [31] With respect, I differ from Joyce's reading of the range in Bernier. In any event, as Stromberg-Stein J. noted in Sherwin, the Court of Appeal suggested a range of six to 13 years for a violent home invasion, and in Moore the Court of Appeal said at para. 14: The total sentence for a particular individual will depend on the degree of violence involved, the offences committed in the invaded premises and the extent of the offender's involvement. After a proper consideration of all the circumstances of this case it cannot be said that an effective global sentence of eight years was unfit. [32] Returning to Brossault, Joyce J. also went on to cite a variety of other cases that Crown provided him in that case. Some of these cases are pre-Bernier and are summarized below: 1. R. v. Vickers, 2007 BCCA 554: on appeal, the Court upheld a ten-year sentence for home invasion. In the case, the accused invaded the home with two other individuals and shot one of the occupants in the leg. The sentencing judge noted that the level of violence that Vickers used had increased over time. Indeed, the offence in question occurred the very day Mr. Vickers was released from prison from an 18-month sentence for assault causing bodily harm. And at para. 21, the Court noted that the 10 year sentence was "at the mid-point of the range articulated in this Court's recent decisions." 2. R. v. Forrester, 2004 BCSC 1310: two men were sentenced to five years for aggravated assault and two years for break and enter to be served concurrently. In that case, they broke into a residence while wearing balaclavas and seriously assaulted the occupant. Both offenders were of aboriginal heritage. One of the offenders had a criminal record although no previous convictions for violence while the other offender had no criminal record at the time of the assault. 3. R. v. Leggo, 2003 BCCA 392: on appeal, the Court upheld the eight and a half year global sentence in addition to the eight months the offender had spent in custody. In the case, the appellant and co-accused kicked in the door of the house, entered the house armed with a wooden bat and an imitation revolver, told the victim to lie on the floor, struck him on the back of the head with the revolver, tied him up, and stole various items. 4. R. v. Dukeshire, 1999 BCCA 484: on appeal, the sentences were increased from three-and-a-half years and two years less a day to five years and four years. In that case, two men broke into a house intending to rob the occupants, and they threatened the occupants with a knife and imitation pistol. Mr. Dukeshire who received the longer sentence had a conviction for robbery and the other offender's only prior conviction was for failing to attend court. 5. R. v. S.A.C., [1998] B.C.J. No. 818 (C.A.): on appeal, the sentence was reduced from five to four years. In that case, the offender broke into a home with a pocket knife (but he did not use it) and threatened to assault the female occupant by hitting her with a piece of driftwood, but her husband shielded her. The accused struck the husband many times and seriously injured him. The accused entered a guilty plea. 6. R. v. Parinas, [1993] B.C.J. No. 2465 (C.A.): on appeal, the sentence was increased from three years to four-and-a-half years. In that case, the offender was a young man, aged 20, with a single prior offence for assault. One of the accused was armed with a shotgun. They bound two women and children and threatened to kill them but the offenders did not physically harm anyone. Joint Sentencing Submissions [33] In R. v. Nome., 2002 BCCA 468, Finch C.J. (as he was at the time) dealt with the issue of rejecting joint sentencing submissions and quoted the Ontario Court of Appeal in R. v. Dorsey (1999), 123 O.A.C. 342 at para. 11: [11] ... The trial judge must, of course, give serious consideration and respect to a joint submission. The submission should be departed from only where the trial judge considers the joint submission to be contrary to the public interest and a submission which, if accepted, would bring the administration of justice into disrepute. [34] In R. v. Dulay, 2013 BCSC 188, Blok J. dealt with the question of a rejected joint submission and noted a bifurcation in BC jurisprudence at paras. 36-38: [36] I turn now to the question, when may a sentencing judge depart from a joint submission? The test to apply is still a matter of unsettled law: R. v. Roadhouse, 2012 BCCA 495. [37] In Roadhouse, supra, the Court of Appeal acknowledged two lines of authority that set out different statements of the test, but it declined to resolve the issue. The two formulations are as follows: 1. The joint submission should be departed from only where the trial judge considers the joint submission to be contrary to the public interest and is a submission which, if accepted, would bring the administration of justice into disrepute: R. v. Dorsey (1999), 123 O.A.C. 342 [Dorsey], approved in R. v. T.M.N., 2002 BCCA 468; 2. The trial judge ought to give a joint submission considerable weight but in the end the submission can be rejected if the sentencing judge concludes that the proposed sentence is not fit: R. v. Bezdan, 2001 BCCA 215. [38] I consider it unnecessary, if not presumptuous, for me to attempt to resolve this difference in this appellate jurisprudence. Suffice it to say that even on the stricter test set out in Dorsey, supra, the sentencing judge's reasons can be read as demonstrating his conclusion that the recommended sentence was contrary to the public interest to the point of bringing the administration of justice into disrepute, insofar as it failed to adequately address the protection of the public. This meets the test set out in Dorsey. General Principles of Sentencing [35] Section 718 of the Criminal Code sets out the principles of sentencing: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. Specific Principle of Home Invasion Sentencing [36] Section 348.1 of the Criminal Code sets out the specific principles to be applied in home invasion convictions: 348.1 If a person is convicted of an offence under section 98 or 98.1, subsection 279(2) or section 343, 346 or 348 in relation to a dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence, (a) knew that or was reckless as to whether the dwelling-house was occupied; and (b) used violence or threats of violence to a person or property. [37] And in R. v. A.J.C.; R. v. Joseph, 2004 BCCA 268, the Court of Appeal reviewed the sentencing aims in home invasion cases at paras 28-30: [28] Counsel for the appellants take issue with the way in which the sentencing judge weighed various factors as aggravating or mitigating circumstances, and gave rehabilitation a second priority to denunciation, general deterrence and protection of the public. [29] I see no such error in principle in the sentencing judge's analysis. He considered all relevant circumstances, and, in my view, assigned them appropriate weight. In particular, I do not think the sentencing judge erred in giving less weight to remorse as a mitigating factor in this case because of the appellants' refusal to identify the third person involved. [30] Similarly, the sentencing judge made no error in concluding that, in cases of this nature, the objectives of protection of the public, general deterrence and denunciation should be given priority: see, e.g., R. v. Dukeshire; R. v. Morrison (1999), 129 B.C.A.C. 157, 1999 BCCA 484 ¶9; N.P.D., supra ¶22-23; R. v. Barton, 2003 BCCA 206 ¶10 [Barton [Emphasis added.] [38] The Ontario Court of Appeal shares a similar view. Indeed, in R. v. Wright, [2006] O.J. No. 4870 (C.A.), it examined the issue and reached a similar conclusion to the BCCA in Joseph: 22 "Ranges" are not embedded in stone. Given their nature as guidelines only, I do not view them as being fixed in law, as is the case with binding legal principles. They may be altered deliberately, after careful consideration, by the courts. Or, they may be altered practically, as a consequence of a series of decisions made by the courts which have that effect. If a range moves by virtue of the application of individual cases over time, it is not necessary to overrule an earlier range that may once have been in vogue; it is only necessary to recognize that the courts have adapted and the guidelines have changed. 23 The cases to which we have been referred, and which my own research has uncovered, reflect a gamut of sentencing dispositions in "home invasion" cases from as low as four or five years, to as high as eleven to thirteen years - with the suggestion that even higher sentences may be reserved for situations involving kidnapping, the infliction of serious injuries, sexual assault or death. Whether a "range" of that elasticity is of much assistance to trial judges in their efforts to preserve sentencing parity for similar offences involving similar offenders - apart from signalling that a significant penitentiary jail term is generally called for - is not clear to me. The downside of attempting to articulate a range for a type of crime that can manifest itself in such a wide variety of ways, and be committed by such a wide variety of individuals, is that the "range" becomes so broad, it is virtually meaningless. Nonetheless, to the extent there can be said to be a range in home invasion cases, it would appear that the one that currently exists is the expansive one outlined above. 24 In my view, however, "home invasion" cases call for a particularly nuanced approach to sentencing. They require a careful examination of the circumstances of the particular case in question, of the nature and severity of the criminal acts perpetrated in the course of the home invasion, and of the situation of the individual offender. Whether a case falls within the existing guidelines or range - or, indeed, whether it may be one of those exceptional cases that falls outside the range and results in a moving of the yardsticks - will depend upon the results of such an examination. I agree with the British Columbia Court of Appeal in A.J.C. (at para. 29), however, that in cases of this nature the objectives of protection of the public, general deterrence and denunciation should be given priority, although of course the prospects of the offender's rehabilitation and the other factors pertaining to sentencing must also be considered. Certainly, a stiff penitentiary sentence is generally called for. [Emphasis added.] [Footnotes omitted.] Discussion Aggravating Factors [39] This case has multiple aggravating factors. [40] First, the offender's previous record shows he is involved with drugs and has a propensity for violence. [41] Second, the offender used an imitation gun during the home invasion. Using a firearm, imitation or real, during an offence like this one is serious. Indeed, using a gun carries an increased level of intimidation. Although the Crown could not prove whether the guns used were real or imitation, they were real to the victim of this offence. [42] Third, when the offender invaded the home, he knew that Ms. Normandeau occupied it. Section 348.1(a) of the Criminal Code requires the Court to consider this fact as an aggravating factor. [43] Fourth, in committing the offence, the offender used violence or threats of violence to Ms. Normandeau. Section 348.1(b) requires the Court to consider this fact as an aggravating factor. [44] Fifth, this home invasion profoundly impacted the victim, Ms. Normandeau. She was a young, vulnerable woman who was alone in the residence; the drug world and its culture were alien to her. She continues to be affected by what the offender did, and her response is an inevitable consequence of a crime of this nature. Mitigating Factors [45] This case only has one mitigating factor, namely the offender's remorse. [46] The offender pled guilty during the first day of trial and saved the prosecution from a two week trial and he saved the witnesses the inconvenience of testifying. [47] The guilty plea also spared Ms. Normandeau the ordeal of having to attend court and re-live the events of November 1, 2012. [48] I recognize that the offender's problems with addiction and substances abuse are not mitigating factors, but I have considered them in the scope of sentencing generally. Summary [49] Submissions on the appropriateness of the proposed sentence were initially given on July 14, 2014. Given the circumstances of the offence as related to me, I was not then satisfied that a sentence on Count 1 of 2 years was a fit sentence and I requested counsel provide further submissions on the point, which I heard on September 17, 2014. [50] Those submissions satisfy me that the joint submissions reflect the uncertainty that Crown had in being able to prove that the offender committed the offences beyond a reasonable doubt. I am told there was no objective evidence that the Crown could call that would have linked the offender to the offences. The witnesses the Crown had available were unsavory, uncooperative and their evidence self-serving and lacking of candor. They evaded service of subpoenas, refused to attend court and claimed to have forgotten the events of November 1, 2012. [51] Further, information provided to the Crown the morning of the trial put an already tenuous case into more doubt. The Crown assessed the realistic chance that the offender would be convicted of the offences charged and determined that it was in the interests of justice to negotiate and agree to the proposed sentence in exchange for a guilty plea. That was the driving force behind the joint submissions. [52] Further, by pleading guilty, the offender gave up his right to a trial and ability to challenge the Crown's case on cross-examination. [53] The circumstances of the offences are serious and had the Crown not endorsed a 2 year sentence on Count 1 and a 1 year consecutive sentence on Count 5, I would have sentenced the offender to 6 years. [54] However, I am mindful that, in the exercise of its duty to the public and in knowing the background leading up to the negotiated guilty plea, the Crown is content and is urging upon me the proposed sentence as being fit and proper. It is below the low end of the range but, on balance, this is one of the exceptional circumstances referred to in R v. Wright. In the circumstances, I find it is not unfit or contrary to the public interest and will not bring the administration of justice into disrepute. To the contrary, it will assist the administration of justice by allowing Crown and counsel for accused persons to consider the strengths and weaknesses of their respective positions and negotiate resolutions that take those matters into account. [55] I am therefore prepared to accept the joint submission on sentencing and I sentence, you, Mr. Stewart, to 2 years on Count 1 and 1 year consecutive on Count 5. [56] In the circumstances, I find this sentence captures the intent of s. 348.1, and it satisfies the necessary denunciation and deterrence requirements. Appropriate Sentence Credit for Pre-Trial Custody [57] The offender was arrested on January 11, 2013 and has served 614 days in pre-trial custody to today. 120 of those days must be subtracted because he was serving time related to another matter, leaving 494 days. Using a rate of 1.5 days for credit, he will receive a pre-trial credit of 741 days. Actual Sentence [58] I am sentencing the offender with 2 years on Count 1 and 1 year consecutive on Count 5. The total sentence is 3 years. With the reduction of his pre-trial credits, the offender's actual sentence from today's date going forward is 354 days (1095 days - 741 days = 354 days). Probation Conditions [59] Based on what the Crown and defence have agreed, following his release the offender will be on probation for one year and his probation conditions will be as set out in the joint submissions attached to these reasons. Ancillary Orders [60] In accordance with s. 487.051 of the Code there will be an order authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from the offender. [61] Lastly, there will be and Order of Forfeiture of the exhibits seized from 1281 Belaire Ave., Kelowna B.C as set out in the Order of Forfeiture dated September 17, 2014 and filed. "G.P. Weatherill J."